Who decides whether a putative class of gig-economy workers like drivers for Uber Technologies, Inc. (“Uber”) are misclassified as independent contractors rather than employees? In Capriole v. Uber Technologies, Inc., No. 20-16030 (9th Cir. Aug. 2, 2021) (slip op. available here), the Ninth Circuit examined an exemption under the Federal Arbitration Act (“FAA”) for
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Postpichal v. Cricket Wireless, LLC: Under RICO, Differences in Consumers’ Experience Purchasing 4G Cell Phones and Plans Does Not Defeat Predominance
“In the early 2010’s, 4G ranked as the newest development in the cellular services industry.” Postpichal v. Cricket Wireless, LLC, No. C 19-07270 WHA (N.D. Cal. Aug. 4, 2021) (“Postpichal”) (slip op. at 1, available here). “Cellular service companies needed 4G to stay current.” Id. at 2. According to the plaintiffs in Postpichal, Cricket…
Johnson v. Maxim Healthcare Services, Inc.: Statute of Limitations on Individual Claim No Bar to Aggrieved Employee Standing Under PAGA
In Johnson v. Maxim Healthcare Services, Inc., Cal. Ct. App. 4th Dist., No. D077599, July 21, 2021 (“Johnson”) (slip op. available here), the California Court of Appeal addressed whether an employee whose individual claim is time-barred may still pursue a representative claim under the Labor Code Private Attorneys General Act (“PAGA”) (Cal. Lab. Code…
Winns et al. v. Postmates Inc.: Postmates Fails to Deliver PAGA Claims to Arbitration in Another Epic Challenge to Iskanian
In Winns et al. v. Postmates Inc., Cal. Ct. App. 1st Dist., No. A155717, July 20, 2021 (“Winns”) (slip op. available here), the California Court of Appeal held that Epic Systems Corp. v. Lewis, 138 S.Ct. 1612 (2018) (“Epic Systems”) does not overrule the California Supreme Court’s opinion in Iskanian v. CLS Transportation Los…
TransUnion LLC v. Ramirez: Divided Supreme Court Holds No Concrete Harm in Being Labeled a Terrorist; Dissenters Argue Violation of Private Rights Confers Standing
Is receiving a letter from one of the “big three” credit reporting agencies identifying you as a “potential” drug trafficker or terrorist sufficiently harmful to establish a “real injury” under Article III of the U.S. Constitution? If not, how about being flagged as a “potential” child molester? Or as a racist? Or finding out that…
Hassell v. Uber Technologies: Uber Fails to Put the Brakes on Uber Eats Driver’s Misclassification Claims
In 2019, the California legislature passed Assembly Bill 5 (“AB 5”), popularly known as California’s “Gig Worker Law.” The new law was designed to regulate companies that hire gig workers in large numbers, such as Uber and Lyft, by making it more difficult to classify them as independent contractors. In 2020, Uber, Lyft, and other…
Bailey v. Rite Aid Corporation: Deception Is in the Eye of the Beholder
In Bailey v. Rite Aid Corporation, Defendant Rite Aid recently petitioned the Ninth Circuit for permission to appeal an order certifying a class of California consumers who purchased Rite Aid gelcaps (an acetaminophen product) labeled as “rapid release.” See Petition for Permission to Appeal Under Federal Rule of Civil Procedure 23(f), Bailey v. Rite Aid…
Silva v. Medic Ambulance Services: EMTs’ Mooted On-Call Claims Remanded to State Court and Avoid Article III Dismissal
In Silva v. Medic Ambulance Services, Inc., 9th Cir., No. 20-16135, memorandum 5/4/21 (unpublished mem. available here), the plaintiff, an Emergency Medical Technician, alleged in her state law complaint that her employer, Medic Ambulance Service, Inc. (“Medic”) violated California Labor Code § 226.7 and the Industrial Welfare Commission Wage Order by requiring her to…
B.F. v. Amazon.com, Inc.: Minor Children of Amazon’s Alexa Purchasers Do Not Have to Arbitrate Claims that the Device Recorded Them Without Consent, Says 9th Cir.
When Amazon customers activate their Alexa devices and purchase products using the service, those customers enter into arbitration agreements with Amazon. There is no dispute in B.F. v. Amazon.com, Inc., 9th Cir., No. 20-35359, memorandum 4/23/21 (“B.F.”) (unpublished mem. available here), that those arbitration agreements are valid between Amazon and the customers who purchased…
Smith v. LoanMe, Inc.: Invasion of Privacy Act Protects Against Recording by Parties to Cell and Cordless Phone Calls, Not Just Third-Party Eavesdroppers, Says Cal. Supreme Court
Smith v. LoanMe, Inc., No. S260391 (April 1, 2010) (“Smith”) (slip op. available here) presents a familiar scenario—a person answers his or her cellular or cordless phone and hears a “beep” during a call. The caller then records the call without first seeking the receiving party’s consent. In Smith, a unanimous California Supreme Court…